The opinion
on rehearing.
January 2, 1924.
LATTIMORE, Judge.
— Appellant’s Appellant’s bill of exceptions No. 4 sets up that after the accused had used ten peremptory challenges to jurors, he asked that he be allowed fifteen such challanges in all, this being a capital case. The court below refused the request on the ground that the State had waived the death penalty. In our former opinion it appears that we accepted without mature consideration this statement in said bill and held that the State had in fact waived the capital feature of the case and that there was no error in the refusal of the request.
In response to appellant’s motion for rehearing we have carefully examined the record and conclude that such waiver does not sufficiently appear therefrom. The indictment charged a capital offense, to-wit: robbery with firearms, and the charge of the learned trial court submitted the law as applicable to such offense, the jury
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being told therein that if they found appellant guilty of the offense charged in the indictment they should fix his punishment at death or confinement in the penitentiary for life, or any period of years not less than five. The jury would have been entirely within the law under this state of facts in assessing the death penalty. There is on file no statement or agreement on the part of anyone authorized to bind the State, waiving the death penalty. A statement made to the court by the attorney for the State as to his waiving the death penalty can not bind the jury. Cleland v. State, 93 Texas Crim. Rep., 503 , 247 S. W. Rep., 861 ; Newsom v. State, 95 Texas Crim. Rep., 390 , 254 S. W. Rep., 961 . In no event would such agreement be binding unless with the sanction of the trial court, and if it be claimed that there was any waiver or attempted waiver, same does not appear in any authenticated way in this record. We were in error. From the case made, — both by the indictment and the charge of the court,— this was a capital felony and fifteen peremptory challenges should have been allowed the accused. We are not committing ourselves to any particular form of agreement in regard to the waiver of the capital feature of a case such as this, which waiver we think can be made as correctly announced by this court in the Gonzales case referred to in the original opinion. In Viley v. State, 92 Texas Grim. Rep., 395, we again affirmed the proposition that such capital feature may be dismissed, holding in that case because of the peculiar form of the indictment that such course was not open to the State. If such waiver further appeared from the record in the instant case by the court’s refusal to submit to the jury the death penalty feature involved, we might be more inclined to the view that the State had waived the death penalty.
Appellant’s motion for rehearing is granted, the affirmance set aside, and the judgment now reversed and the cause remanded.
Reversed and remanded.